The Law Office of Kurt H King

November 16, 2017

Are Damage Caps Constitutional in Missouri’s New MHRA Regarding Discrimination

Missouri’s amendments to the Missouri Human Rights Act (codified in Chapter 213 of the Revised Missouri Statutes) cap employer liability for damages beyond back pay with interest to a scale tied to the number of employees of the employer.  The maximum tier for employers with over 500 employees carries a $500,000 limit on such non-pecuniary damages–a category including punitive damages, pain and suffering, emotional distress, loss of enjoyment of life.  (Section 213.111, RSMo, at subsection 4.)

The question is whether those caps will stand.  Similar damage caps were struck down as to medical malpractice actions in Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Missouri Supreme Court 2012), as an unconstitutional restriction upon the common law right to trial by jury.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Personal Injury & Other Litigation, Workers’ Compensation

 

 

November 14, 2017

BASIC SOVEREIGN IMMUNITY IN MISSOURI-2017

Some current basics:

In general, Missouri law prohibits lawsuits against the State itself and its political subdivisions, municipalities/cities, and quasi-governmental bodies (to some extent).  In other words, you can’t sue the King or the government for negligence or other tort acts or omissions unless he/it lets you–a doctrine known as Sovereign Immunity.

Some of the Major Exceptions to Sovereign Immunity

2) Missouri statute 537.600 allows these TORT lawsuits REGARDLESS OF WHETHER THE PUBLIC ENTITY ACTED IN GOVERNMENTAL OR A PROPRIETARY CAPACITY, AND REGARDLESS OF WHETHER THE PUBLIC ENTITY IS COVERED BY LIABILITY INSURANCE IN TORT:

(a) negligent operation of motor vehicles by public employees; and,

(b) for injuries caused by dangerous conditions on property of the public entity.

3)  And, Missouri Revised Statutes section 537.610 waives sovereign immunity as to the State of Missouri and its “political subdivisions” to a limited extent IF insured by liability insurance for tort claims.

4)  Missouri has a similar statute, section 71.185, which waives Sovereign Immunity so as to enable lawsuits against Missouri municipalities that carry liability insurance for tort claims, BUT ONLY in cases where the acts are those of governmental function (for the public good).

5)  If the municipality function which causes personal injury is proprietary–as a private business would act, for profit–then sovereign immunity does not apply.  City maintenance of a park has been held by Missouri appellate courts to be a proprietary function, as is a city’s provision of water to customers; however, airport security falls into the governmental function category.

6) The governmental-proprietary distinction does not apply to the State of Missouri and its political subdivisions–including the police departments of Kansas City and St. Louis  as they now exist under State law to avoid undue city influence and cuts in funding.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Personal Injury, Missouri Workers’ Compensation, General Litigation

October 26, 2017

ERISA LIENS, MEDICARE SET ASIDES, ETC.

Marci Gordon of Synergy Settlements out of Orlando, Florida, did fine job at recent Clay County, Missouri, CLE on the subject of ERISA liens and some reduction strategies.   Her business card also lists Medicare set aside trusts, lien resolution, pooled trust services, and complex settlement planning and consulting.

Synergy offices at 911 Outer Road, Orlando, Florida 32814, with a Toll Free line 877.242.0022, Direct line 407.279.4812, Cell 407.620.7471.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Personal Injury, Workers’ Compensation, Litigation, General Matters

July 18, 2017

Kansas Under-Insured Motorist Coverage

Under Kansas statute K.S.A. 40-284(b), Under-Insured Motorist (“UIM”) automobile coverage pays only “to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” Kerns v. Alliance Indemnity Co., Slip Op. 79948 (Mo. Ct. App. W.D. April 25, 2017).

So, if you carry the minimum 25/50 (in thousands of dollars), your UIM coverage does not pay you a dime because the other driver will have at least the required minimum 25/50 of bodily injury coverage.  Since your $25k of UIM does not exceed the other driver’s $25k of bodily injury, you get zero from your UIM.

(Note: Kansas law prohibits “stacking” of UIM coverage.  K.S.A. 40-284(d))

Even if you buy more than the 25/50 minimum of UIM, it still pays you nada if the other driver has as much or more bodily injury coverage.  For example, if you carry $100k in UIM, and are hit by another driver with $100k in bodily injury coverage, your UIM pays nothing because your UIM of $100k is no greater than the other driver’s $100k of bodily injury coverage!

We wonder if insurance agents explain this to the people buying insurance from them.  If they are, one would expect the buyer to either waive UIM coverage or buy more than teh minimum 25/50 amount.

Kurt H. King, Attorney at Law

20 E. Franklin, Liberty, Clay County, Missouri

816.781.6000

Personal Injury, Workers’ Compensation, Litigation, General Matters

February 24, 2016

Spoilation of Evidence Experience in Clay County, Missouri

Missouri history of sanctions for spoilation of evidence dates back to the 1882 case of Pomeroy v. Benton where the Court fashioned an adverse ruling against a defendant who concealed evidence of damages to his partner.  Many cases since address whether a court should grant an adverse inference or sanctions due to spoilation.

We argued this issue in a 2015 jury case in Clay County, Missouri, the Court ultimately denying request for an adverse inference based on what we believed to have been wrongful destruction of video of plaintiff’s fall captured by surveillance camera mounted on the exterior of the grocery store.  The store claimed to have mistakenly preserved video of the day after plaintiff’s fall, having taped over the day that plaintiff actually fell.  A risk manager for the chain store timely requested video of the fall–obtaining the “day after” video–but the store claimed it received no request for the correct video within the allotted 30 days after plaintiff’s fall.

The Circuit Court of Clay County, Missouri, apparently determined that the store did not intentionally destroy (by tape-over 30 days later) video of plaintiff’s fall, and/or that it did not do so with intent to defraud.

Note that months passed after the fall before the undersigned began representing plaintiff, and no letter issued shortly after plaintiff’s fall demanding the store preserve video and other evidence of the fall.  Such a preservation demand or other duty to preserve can be key.  We know not how the Court weighed our argument that: 1) the store immediately knew of the fall (its manager having assisted at the scene and reported the incident to superiors); 2) the video was in fact timely requested although that of the wrong date actually sent; and, 3) the store knew full well of a need to properly preserve video and other evidence of  customer injury known to it.  However, our impression is that the lack of an early demand for preservation of evidence was not decisive in this case to this judge.  Indeed, other courts indicate failure to have an adequate retention policy may constitute spoilation under certain circumstances.  But this store did have a preservation system in place, that being a 30 day tape over policy by  which previous video is simply taped over on the 31st day absent request to preserve made within 30 days.

P.S.–Weeks after this trial, a plaintiff’s attorney with a similar case against this defendant called for my thoughts.  He mentioned that the defendant store also lost/destroyed video of his client’s injury.  Wonder how often Hy-Vee fails to preserve and whether it is truly accidental?

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Personal Injury, Workers’ Compensation, Litigation, General Matters

December 29, 2015

When Missouri Claim for Emotional Distress Should Be Stricken as Duplicative

Consider a case where plaintiff sues for trespass and includes a separate count for infliction of emotional distress, with both counts alleging the same trespass facts.

Know that an emotional distress claim cannot be maintained as a separate cause of action alongside the underlying tort claim for trespass (for instance) and recovery must be had under the traditional tort action.  K.B. v. R.T.R, 918 S.W.2d 795, 799 (Mo. 1996); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 316 (Mo. 1993).

Law Office of Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Civil Litigation, Personal Injury, Workers’ Compensation, Family Law & General Matters

Proving Emotional Distress Where There Is No Physical Impact

To recover for emotional distress where there is no physical impact, the injured person must plead and prove the purported act directly caused emotional distress that is “medically diagnosable and medically significant.” Miller v. Wackenhut Services, 808 F.Supp. 697 (W.D.Mo. 1992), citing Hendrix v. Wainwright Industries, 755 S.W.2d 411, 412 (Mo. Ct. App. E.D. 1988); Bass v. Nooney, 646 S.W.2d 765, 773 (Mo. 1983).  Expert medical testimony is generally required.

Law Office of Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Civil Litigation, Personal Injury, Missouri Workers’ Compensation, Family Law, & General Matters

December 22, 2015

Does Bankruptcy Court have Power to Hear Counterclaims in Adversary Proceedings?

If you file an Adversary proceeding in Bankruptcy Court, and defendant files counterclaims for infliction of emotional distress (actionable under state law), read the US Supreme Court’s 2011 opinion in Stern v. Marshall, 564 U.S. ___, 131 S. Ct. 2594.  There the high court reviews Article III powers of bankruptcy courts regarding such claims and rules that the bankruptcy court lacks power to enter final judgment on counterclaims of that species.  However, the remedy is not dismissal for lack of jurisdiction, but rather transfer to federal District Court (or the parties may consent to trial before the bankruptcy judge).

Law Office of Kurt H. King

20 E. Franklin, Liberty, Missouri 64068; 816.781.6000

Civil Practice including Litigation of Personal Injury and Property Claims, Workers’ Compensation, Family Law Matters

August 19, 2014

History of Wrongful Death Actions in Missouri

Do yourself a big favor and read Daniel Sheffner’s article in the July-August 2014 edition of the Journal of the Missouri Bar (Google search will find it for you), entitled “Wrongful Death’s Common Law Antecedents in Missouri.” Well written with important information.

Sheffner traces the fallacy that began the need for states to pass wrongful death laws. And, he points out that James v. Christy, 18 Mo. 162 (1853), a case decided two years before Missouri’s first wrongful death law, indicates that Missouri COMMON LAW afforded recovery of damages for wrongful death.

Since Missouri common law granted recovery for wrongful death prior to the state’s first wrongful death act passed in 1855, the present damage caps should not apply for that reason as well as the fact that such caps were recently struck down where the victim survived the injury. Why should recovery be limited when the victim dies but not when he lives?

Kurt H. King
816.781.6000
20 E. Franklin, Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Personal Injury, Workers’ Compensation
Chapter 7 Bankruptcy for debtors, Family Law, General Matters

April 22, 2014

When Can You Sue Again?–Res Judicata & Collateral Estoppel

In its April 15, 2014, Xiaoyan Gu v. Da Hua Hu, Ace INA Insurance Company Canada opinion (ED100001), the Eastern District of the Missouri Court of Appeals reversed the trial judge’s summary judgment award in favor of defendant insurer.

Facts of the underlying cases:  Husband and wife  were passengers in a truck rented to haul grapes and carrots between California and Ontario.  Defendant Ace INA Insurance Company of Canada wrote the Garage Automobile Policy which insured the Volvo dealership which rented a tractor truck to the driver (who opted not to purchase insurance coverage on the rental).  However, the garage policy covered additional insureds if that person [the driver] operated any automobile in connection with the business of the dealership, and the court so found since the renting of the truck furthered the business of the dealership.

Note that this is the third trial thus far in this case: the first, a bench trial for personal injuries of the husband and for loss of consortium by his wife  against the trucking companies and the driver.  The court awarded husband nearly $14 million and  wife $1.5 million.

The second trial, judge-tried also, was by husband  only for equitable garnishment on the garage policy issued to  the dealer by defendant Ace INA.  On the first day of trial, the defense moved to amend its pleadings to assert the exclusion in the policy that applied when the ” automobile is being used . . . for the carrying of goods or materials for compensation.”  The court ultimately ruled that such late assertion of the defense was unfair, and denied the motion for leave to add that defense.  Judgment resulted in favor of husband against Ace INA Insurance Company on his garnishment action.

This brings us to the third case which is the subject of this appeal–another equitable garnishment case against Ace INA to obtain payment of the personal injury judgment but this time brought by the wife.  This time around, the defense timely raised the carriage-of-goods exclusion, and the trial judge upheld that defense in granting summary judgment in favor of insurer Ace INA.

On appeal, wife argued that collateral estoppel and/or res judicata barred the insurer from raising the carriage-of-goods exclusion.  The court of appeals rejected the collateral estoppel agrument because that exclusion/defense was not “fully and fairly litigated” in the first garnishment case by husband.

Next, the Eastern District focused on res judicata.  For that doctrine to apply, these four “identities” must co-exist: 1) of the thing sued for; 2) of the cause of action; 3) of the persons/parties; 4) of the quality of the person for or against whom the claim is made.  The fourth identity was undisputed, so the the court analyzed the first three.

The Thing Sued For:  In the court’s eyes, both garnishment cases–that of husband and wife–sought the same thing–“[g]arnishment of insurance proceeds to satisfy a judgment that stems from damages caused by the same motor vehicle accident.  No problem finding this element.

The Cause of Action:   This element is defined as “the underlying facts combined with the law, giving a party a right to a remedy of one form or another based thereon.”   Again, a finding that this element existed since “no different or new facts were required” for [wife] to establish her garnishment case.

The Parties:  This element requires that the parties be the same or in privity.   For privity to exist, the interests of a party and non-party in privity must have been so “closely intertwined that the non-party can fairly be considered to have had his or her day in court.”  Here, this element existed due to Missouri law holding that a judgment creditor “stands in the shoes’ of the judgment debtor, and thus wife has the same rights as the driver under the garage insurance policy from Ace INA.

Since all four identities coexisted, the trial judge erred in allowing insurer Ace INA to raise this defense.  The court of appeals therefore reversed and remanded for entry of judgment in favor of wife.

(Side note:  Res judicata  applies to claims or defenses that could have been raised previously, as well as those which were.)

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

http://www.kurthking.com

Personal Injury, Workers’ Compensation

Chapter 7 Bankruptcy

Family Law

General Matters

 

 

 

 

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